"Because they are contextually relevant, WhenU's advertisements are useful to consumers and effective for advertisers," the suit states.

WhenU alleges the classifications among different kinds of Internet businesses created by the act are arbitrary and unrelated to the state's legitimate interest in protecting the privacy of Utahns. Its suit also says the scope of the law is unclear, making it "impossible for WhenU to know how these terms will be interpreted, and thus how the act will be enforced."

Even if WhenU made changes to comply with the act, the suit states, "private enforcers, motivated by the act's draconian penalties and the promise of attorneys' fees, may still seek to sue WhenU for allegedly violating the act."

The suit continues: "Thus, the act presents WhenU with the impossible choice of either foregoing constitutionally protected advertising and spending significant sums to comply with the act (thereby reducing the effectiveness of its business), without any guaranty that it will avoid liability in doing so, or else being subjected to millions of dollars of claims by private litigants."

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E-mail: bwallace@desnews.com